Tuesday, June 30, 2009

The New York Court of Appeals handed down six decisions today covering a wide range of issues.

Personal Injury and Expert Witness: in Butler v. City of Gloversville, a young girl fractured her clavicle and femur after falling off a playground slide on property owned and maintained by the defendant city. The plaintiff alleged that the proximate cause of her injuries was the failure of the city to use protective energy-absorbing ground covering as recommended in public and industry guidelines. A divided Appellate Division concluded that based on the affidavit of its expert, the city was entitled to summary judgment.

Reversing the Appellate Division, a unanimous Court of Appeals concluded that the city was not entitled to summary judgment regarding proximate cause because the expert did not provide a "scientific or mathematical foundation" for his conclusion that the plaintiff would have been injured even if the protective ground covering had been installed by the defendant. The case provides a caution on the close scrutiny which must be given to the affidavit of an expert before summary judgment can be granted.

Life Settlement Providers: "life settlement providers" buy life insurance policies from policy owners for cash, ultimately receiving the benefits of the policies when the insureds die. The New York State Attorney General brought suit against a group of life settlement provider companies alleging they engaged in bid-rigging by paying hidden commissions to life settlement brokers who in turn persuaded their clients to accept the defendant companies' offers, rather than higher bids from competing settlement providers.

In what appears to be a matter of first impression, the Court concludes in The People of the State of New York v. Coventry First LLC, that settlement brokers owe a fiduciary duty to their clients to obtain the highest possible offer for the clients' life insurance policies. The Attorney General, therefore, states a cause of action when he alleges that the defendant companies' hidden commissions aided, abetted, and induced the brokers to breach their fiduciary duty to their clients.

Stun Belt: it is rare for the Court of Appeals to conclude that certain conduct by a trial judge is per se reversible error in a criminal case, even in the absence of demonstrable prejudice to the defendant. People v. Buchananis such a case.

Presiding over the trial of a defendant charged with strangling a 14-year old girl, the judge directed that a stun belt be placed on the defendant. The judge stated that the belt "can deliver a shock should there be a problem." The defendant and his counsel objected that the defendant had done nothing to require the belt; the judge agreed, but stated it was his policy to require the belt in a murder case "in the interest of being overly cautious for security." The belt was worn under the defendant's clothing, and was not visible to the jury. The defendant was convicted of second degree murder.

The Court of Appeals reversed the conviction, concluding "as a matter of New York law that it is unacceptable to make a stun belt a routine adjunct of every murder trial, without a specifically identified security reason....[W]e adopt the rule that a stun belt may not be required unless the trial court makes findings on the record showing that the particular defendant before him needs such a restraint." Judge Read dissented from reversal of the conviction on the grounds that because the belt was not visible to the jury, the defendant suffered no prejudice when he was required to wear it.

Inventory Search: in People v. Gomeza unanimous Court concludes that the inventory search an arrestee's car was unlawful because the prosecutor failed to offer any evidence that the search was conducted in accordance with a standard protocol as required by the case law, and because the police failed to provide an inventory of the contents of the car.

ABOUT THE AUTHOR

Norman A. Olch, one of New York's leading appellate lawyers, has successfully argued numerous civil and criminal cases in the state and federal courts. From 2003 to 2006 he was Chair of the Appellate Courts Committee of the New York State Bar Association, and he sits on the Executive Committee of the American Bar Association's Council of Appellate Lawyers. His peers have selected him a New York "Super Lawyer" for appeals in 2006, 2007, 2008, 2009, 2010, 2011, and 2012. He is co-author of the New York State chapter in the American Bar Association's 2-volume Appellate Practice Compendium (2012)which covers appellate practice in the United States Supreme Court, in all of the federal courts of appeal, and in each of the fifty states.